JUDGMENT
B.N. Agrawal, J.
1. This appeal has been preferred by applicants in a probate case against the decision of a learned single Judge of this Court in a first appeal whereby the judgment passed by trial Court has been reversed.
2. An application was filed for grant of Letters of Administration in favour of the applicants in respect of the properties described in the Will giving rise to Probate Case No. 3/2 of 1970/71. The case of applicants, in short, was that one Chutamani Debya, a Hindu governed by Mitakshara School, died issueless after executing a registered Will dated 22-12-1917 in favour of Haliram Mahatha, Budhu Mahatha and Khudu Mahatha, in respect of the properties described in the Will. After death of the testator, the legatees, who were ancestors of the applicants, came in possession of the properties, which were subject-matter of the Will, and upon the death of the legatees, the applicants as their heirs are continuing in possession of the same. The said Will is said to be the last Will of the testator, who at the time of execution of the Will, was of sound state of mind.
3. After citations were issued to near relations, several objections were filed. One of the objections was that the testator had no right, title and interest in the properties bequeathed. It is said that the Will was obtained by fraud, coercion, misrepresentation and after taking advantage of illiteracy of the testator, who was a lady. Thus, genuineness of the will was challenged on behalf of the objectors.
4. Both the parties in support of their respective cases led oral and documentary evidence and trial Court after considering the same, granted Letters of Administration in favour of the applicants after holding that the Will was genuine and duly executed by testator. Against the judgment of trial Court, when the matter was taken in appeal before this Court, a learned single Judge allowed the appeal, set aside the judgment of trial Court and dismissed the application for grant of Letters of Administration, after recording finding that the Will has not been proved in accordance with law, as execution and attestation of the Will was not proved in accordance with the provision of Section 69 of the Evidence Act (hereinafter referred to as ‘the Act’), because neither the scribe nor any of the three attesting witnesses was alive. In view of the fact that in the opinion of the learned single Judge, the Will was not legally proved and could not have been marked as an exhibit in the case, the question whether the same was genuine or not was not gone into by him. Hence this appeal.
5. Mr. Devi Prasad, learned counsel appearing on behalf of the appellants, in support of this appeal, has raised three points; firstly, that the present Will was executed in the year 1917, as such, the same having been executed 30 years ago, under Section 90 of the Act, the Court was obliged to presume its due execution and attestation and, therefore, requirement of formal proof, as envisaged under Section 69 of the Act was not necessary to be complied with. Secondly, it has been submitted that provisions of Section 69 of the Act were fully complied with and learned single Judge was not justified in holding otherwise. Thirdly, it has been submitted that though the question of genuineness or otherwise of the Will has not been gone into by learned single Judge, this Bench should consider the said question itself instead of remanding the matter to learned single Judge.
6. On the other hand, learned counsel appearing on behalf of the respondent, contended that the present case was not a fit one in which the presumption, as envisaged under Section 90 of the Act, could have been drawn; the Will was not duly proved, as envisaged under Section 69 of the Act and the same was not genuine.
7. In support of their respective contentions, learned counsel have placed reliance upon some decisions, but, in my view, the question to be decided in this case did not directly arise in any of the cases cited, as such, I do not find that any useful purpose will be served by referring to the same.
8. In view of the aforesaid submissions, I proceed to deal with point No. 1 first. Section 90 of the Act is in the chapter of presumptions as to documents and Sections 79 to 90 fall within that chapter. Under Sections 79 to 85 and 89, a Court is obliged to presume a particular state of affairs, if the conditions enumerated thereunder are satisfied, as the expression used in these sections is that the Court “shall presume”; whereas under Sections 86 to 88 and 90, there is no such obligation upon the Court to presume even if the conditions enumerated there under exist, but it is discretionary matter of the Court to raise or not to raise a presumption as the expression used in this sections is that the Court “may presume”. The expressions “shall presume” and “may presume” have been defined in Section 4 of the Act. According to Section 4 of the Act, whenever it is provided by this Act that the Court may presume a fact, it may either regard such fact as proved, unless and until it is disproved, or may call for proof of it. It further provides that whenever it is directed by this Act that the Court shall presume a fact, it shall regard such fact as proved, unless and until it is disproved. In my view, according to Section 4, wherever the expression “may presume” has been used in the Act, a discretion has been given to the Court to presume a fact or refuse to raise such a presumption. If the Court finds that it is a fit case for raising presumption, in that event, such fact stands proved unless and until it is disproved by other side. According to this section, in cases where a discretion lies with the Court and it refuses to exercise discretion, then it may call upon the parties to prove the fact by leading evidence. In those sections where the expression has been used that the Court ‘shall presume’ in that event no discretion has been left with the Court and there is a legislative command to it to raise a presumption and regard such fact as proved unless and until it is disproved. In such an eventuality, the question of calling upon the parties to formally prove a document does not arise.
9. According to Section 90 of the Act, where any document, purporting or proved to be thirty years old, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that person’s handwriting, and, in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested. For application of Section 90 of the Act, there are two pre-requisites, firstly, that the document is thirty years old and, secondly, that the same is produced from proper custody. If these two conditions are fulfilled, then the Court is required to consider whether it is a fit case or not for raising presumption of due execution and attestation of a document. If the Court finds that it is a fit case for exercising judicial discretion and raises a presumption, in that event only, a presumption of due execution and attestation can be raised and thereafter necessity of formal proof of the document is waived. If the Court feels that it is not a fit case for exercising discretion and raising presumption, in that event, as stated above, it will call upon the parties to formally prove the document, even though the two conditions enumerated in Section 90 are in existence.
10. The principle underlying Section 90 is that if a document, thirty years old or more, is produced from proper custody and is, on its face, free from suspicion, the Court may presume that it has been duly executed and attested. The reason for incorporating Section 90 is founded on necessity and convenience. It is extremely difficult and sometimes impossible to prove handwriting, signature and execution and attestation of ancient documents after lapse of many years. Further reason for incorporating this provision is that if the two conditions enumerated in Section 90 are fulfilled, then in relation to documents the execution and attestation of which are not denied, the necessity of formal proof is waived and thereby Court’s time is saved.
11. The question arises in which case the Court should exercise discretion of raising presumption and in which one the discretion should be refused. In my view, there cannot be any straight-jacket for exercising discretion by the Court under Section 90 of the Act. If the two conditions laid down in Section 90 are fulfilled in relation to a particular document and its genuineness is not disputed, then the Court should exercise its discretion under Section 90 of the Act, even if the executant or attesting witnesses are alive and available, and admit the document into evidence thereby waiving its formal proof. Otherwise un-necessarily Court’s time will be wasted in formally proving the document by examining witnesses and the same will frustrate the very purpose of incorporating Section 90 in the Act. It has been noted by Lord Hailsham in Halsbury’s Laws of England, 4th Edition, Volume 17 in para 129 that such documents prove themselves notwithstanding the fact that one of the subscribing witnesses is alive.
12. In my view, if the executant or attesting witnesses are not alive or available in relation to a document, the genuineness of which is disputed and mode of proof as required under Section 69 of the Act is also not possible, the Court should raise a presumption under Section 90 of the Act in relation to due execution and attestation of document, if it comes to the conclusion that the document is such that it is likely to have
been executed, having regard to the common course of human conduct and there are no circumstances exciting suspicion of the Court such as artificiality and unnaturalness or correction or tampering with document. In the case of Shafiq-un-Nissa v. Shaban AH Khan, ILR XXVI Allahabad 581, the Privy Council was considering the effect of Section 90 of the Act. Both the conditions were in existence, but genuineness of the document was disputed and the Courts in India refused to mark the document as an exhibit under Section 90 of the Act and called the party for formally proving the document as in their opinion there was evidence in the case which raised great suspicions as to the document itself. When the matter was taken to the Judicial Committee the decision of the Indian Courts was upheld and it was observed thus :
“Under these circumstances, their Lordships are not surprised that the Judges, both in the Civil Court and in the Court of the Judicial Commissioner, exercised the discretion which is vested in them by Section 90 by not admitting the document to evidence without formal proof, although it is more than thirty years old, and purports to come from the proper custody. It should be added that the Court considered that there was evidence in the case which it is not necessary to go into, and to which in fact, their Lordships’ attention has not been pointedly drawn — which raised great suspicions as to the document itself.”
13. In the case of Ram Milan v. Sher Bahadur, AIR 1976 All 251, the trial Court refused to raise presumption on the ground that the ink used was not as old as the document purported to be and it was written after the folds had been made. The High Court upheld the judgment on the ground that the document was on the face of it suspicious. In the case of Baldeo MIssir v. Bharos Kunbi, AIR 1926 All 537 (1) it was laid down that the document was ex facie suspicious, as such, appellate Court rightly refused to raise presumption in view of the fact that description of property in the document was erased and re-written with fresh ink.
14. In the case of Dhanapal Chettiar v. Govindaraja Chetty, AIR 1961 Mad 262, a learned single Judge while considering the scope of Section 90 of the Act observed :
“The real scope of Section 90 seems to be that in the normal circumstances, where it is found that the document in question emanates from an apparently lawful custody and where the document is such that it is likely to have been executed having regard to the common course of human conduct, and where there are no circumstances to excite the suspicion of the Court, such as, unnaturalness and artificiality surrounding the transaction or an apparent interlineations or correction or tampering with the document, the Court will draw the presumption.”
15. In cases where genuineness of a document is disputed and the executant or attesting witnesses are alive and available, or if they are dead or not available, but evidence is available for proving the document in accordance with the mode prescribed under Section 69 of the Act, then the Court should not raise presumption under Section 90 of the Act and admit the document into evidence, but direct the parties to prove the document by leading evidence.
16. Keeping in mind the aforesaid principle, I proceed to consider this appeal in which the Will in question was executed in the year 1917 and the same is registered one. The Will apparently does not appear to be suspicious one but still since its genuineness has been disputed and though the scribe and attesting witnesses are dead, but witnesses, namely, A.Ws. 1 and 4 are available to prove that the attestation of one attesting witness atleast is in his handwriting and signature of the person executing the document is in the handwriting of that person, as required under Section 69 of the Act. Therefore, in this case it is not possible to raise the presumption under Section 90 of the Act regarding due execution and attestation of the Will and the Will could not have been admitted into evidence without its being formally proved.
17. Now the question is whether the Will has been formally proved by A.Ws. 1 and 4, as
required under Section 69 of the Act or not. So far as A. W. 1 is concerned, both the parties agree that the leaned single Judge was quite correct in holding that the witness has failed to prove execution and attestation of the Will. So far as evidence of A. W. 4 is concerned, he stated that the testator along with this witness had gone to the registration office for execution of the Will and in his presence the testator met the scribe Tarni Acharya and directed him to scribe the Will who after scribing the same, read it over to the testator. He has further stated that the testator executed a document by touching pen and the scribe signed on her behalf. He has also stated that the Will was executed in presence of the attesting witnesses, namely, Barju, Chinu and Jiwan Gope and these attesting witnesses signed at the request of the testator. The witness further says that all the aforesaid formalities had been done in his presence. After pointing out to the Will in question, the witness says that this was the Will which was duly executed and attested in his presence, as stated above. Learned single Judge has refused to place reliance upon the evidence of this witness on the ground that he has not stated anywhere in his evidence that he identifies the signature of either the scribe or any of the attesting witnesses. In my view, identification of signature is not necessary to prove a document, as required under Section 69 of the Act. Identification of signature is necessary only if document is not signed in presence of the witness. In a case, where document has been executed in presence of a witness, it is not necessary for him to say that he identifies the signature. It is sufficient for the witness, if he says that the document in question produced in Court, to which his attention was drawn, was executed and attested in his presence. Therefore, I am clearly of the view that the requirement of Section 69 of the Act has been complied with and the Will in question has been rightly admitted into evidence by trial Court.
18. Since the genuineness of the Will in question has been disputed and the learned single Judge has not gone into the question of the genuineness, ordinarily, this bench would have remanded the matter to the learned single Judge for considering the said question, but since the application for grant of probate was filed in the year 1970 and a period of 23 years has expired, I am of the view that this bench should itself consider the question of genuineness of the document instead of remanding the matter to the learned single Judge to avoid unnecessary delay, as it is well settled that in appropriate cases, letter patent bench can exercise powers of the first appellate Court.
19. The objectors have examined four witnesses in all out of whom, O.P. Ws. 1 and 2 are formal witnesses who have proved certain rent receipts. On the question of genuineness of the Will, the objectors have examined O.P.Ws. 3 and 4. O.P.W.3 Surya Narain Mahatha is son of Barju Mahatha, who was one of the attesting witnesses to the Will in question. He has stated that at the time of death of his father, he was aged 14 to 15 years. The witness says that the alleged signatures on the Will are not of his father Barju Mahatha. The witness has nowhere stated in his evidence that he identifies signature of his father. He has also admitted that he had never seen the signatures of his father on the Will prior to the date of his deposition in Court when his attention was drawn towards the attestation of his father on the Will in question. Undisputedly, the Will was executed by the father of this witness before this witness was. born. The witness has nowhere stated that his father ever told him that he had never attested the Will in question. Apart from the fact that this witness is incompetent to deny the signature of his father on the Will, he is on inimical terms with the applicants, as he has admitted in his evidence that his elder brother was an accused in a theft case. In that case, the applicants had deposed as prosecution witnesses. The witness has admitted that his brother was convicted by trial Court, but, on appeal, being preferred, he was acquitted. In view of this, in my view, it is not possible to place reliance upon the evidence of this witness. Moreover, even if the evidence of this witness is accepted, still so far as signatures of the testator and other two attesting witnesses are concerned, their genuineness cannot be doubted, as the witness has not uttered a single word about the same.
20. The other witness on the question of genuineness of the Will is O.P.W. 4. This witness has made a bald statement in his examination-in-chief that the Will in question was forged one. This witness is one of the objectors. He admits that he had never seen the testator. He says that he had never seen the Will before his attention was drawn towards it in Court. He was not able to say as to whether the Will was registered or unregistered one. The witness was 55 years old at the time of his deposition in the year 1973, which shows that he was born in the year 1918 whereas the registered Will was executed in the year 1917 and this shows that at the time of execution of the Will, he was not even born. Except making a bald statement that the Will is forged, the witness has not stated anything that the Will does not bear pen mark of the testator and signatures of the scribe and attesting witnesses. He has nowhere stated in his evidence that he knew pen mark and signatures of the scribe and attesting witnesses. Besides the fact that this witness was incompetent on the question of genuineness of the Will, he was also on inimical terms with Barju Mahatha, one of the attesting witnesses of the Will. No other evidence could be pointed out on behalf of the objectors to show that the Will was not genuine.
In view of the foregoing discussions, in agreement with the trial Court, I hold that the Will in question is genuine and has been duly executed and, as such, in my view, the trial Court was justified in granting Letters of Administration in favour of the applicants.
21. In the result, this appeal is allowed, the judgment of the learned single Judge of this Court is set aside and that of the trial Court is restored. In the circumstances of the case, I direct that parties shall bear their own costs.
Narayan Roy, J.
22. I agree.